Affinity (In Canon Law)

Affinity (in Canon Law)

A relationship arising from the carnal intercourse of a man and a
woman, sufficient for the generation of children, whereby the man
becomes related to the woman's blood-relatives and the woman to the
man's. If this intercourse is between husband and wife, this
relationship extends to the fourth degree of consanguinity, and the
degree of affinity coincides with that of blood relationship. Today
affinity does not beget affinity. Therefore the relatives of the man do
not become relatives of the woman's relatives, neither do those of the
woman become relatives of the man's relatives. Even if the intercourse
were the result of force or committed in ignorance, e.g. in
drunkenness, the juridical effect would follow. If the intercourse is
licit, it is a diriment impediment of marriage in the collateral line
of the fourth degree, as also in the direct line. If the intercourse is
illicit or out of marriage, the impediment today is limited to the
second degree. The Council of Trent makes no distinction with regard to
the extent in either line. Though the Church has no jurisdiction over
the not-baptized, yet it considers an affinity arising before baptism
as a diriment impediment. The regulations of the Mosaic law, based on
considerations of relationship, are contained in Leviticus, xviii. The
design of the legislator was apparently to give an exhaustive list of
prohibitions; he not only gives examples of degrees of relationship,
but he specifies the prohibitions which are strictly parallel to each
other, e.g. son's daughter and daughter's daughter, wife's son's
daughter and wife's daughter's daughter, whereas had he wished to
exhibit the prohibited degree, one of these instances would have been
sufficient. He prohibits marriage to a brother's widow, but not to a
deceased wife's sister. Yet he requires a brother to marry his
brother's widow in case the latter died without issue; and he cautions
the man not to hold intercourse with his wife's sister while the wife
is living. The Roman law considered the intercourse of marriage to be a
bar to marriage only with the kindred in the direct line. The Christian
emperors extended it to the first degree of collateral affinity. The
ecclesiastical law extended the juridical effect also to illicit
intercourse. In the Council of Elvira (c. 300), the only recognized
prohibition is the marriage of a widower with his deceased wife's
sister. The prohibition became slowly more extensive till, in 1059, the
eleventh canon of the Council of Rome recognizes the impediment of
affinity as well as of consanguinity to extend to the seventh degree.
This probably arose from the need of mingling the various barbarian
races through marriage, an end that was effected by the extension of
prohibitions of marriage between persons related. Innocent III in the
Fourth Council of Lateran (1215) limited both affinity and
consanguinity to the fourth degree. The Council of Trent (Sess. XXIV,
c. iv, De Ref.) limited the juridical effect of the extra-matrimonial
intercourse to the second degree of affinity.

The motive for the impediment of affinity is akin to, though not as
strong as, that of consanguinity; there arises from the partners'
carnal intercourse a nearness and natural intimacy with the
blood-relatives of the other side. The degrees of affinity are
determined by the same rule as the degree of blood-relationship. Before
the Fourth Council of Lateran two other kinds of affinity were
recognized as an impediment to marriage. If a man then married a widow,
those who were akin to her by the previous marriage were also akin to
the present husband. Moreover, if the first husband of the widow had
been a widower, the blood relatives of his first wife were akin to the
first husband, were also akin to the new wife, and to the last husband.
We give an example: Titius contracted and consummated marriage with
Bertha. The blood-relatives of Bertha were akin to Titius. Bertha dies.
Titius contracts and consummates marriage with Sarah. The
blood-relatives of Bertha, akin to Titius by the first kind, became
akin to Sarah by the second kind of affinity. Titius dies and Sarah
contracts and consummates marriage with Robert. The blood-relatives of
Bertha, akin by second kind to Sarah, become akin by the third kind of
affinity to Robert. Affinity also, in the ancient law, arose between
the children of a woman from a deceased husband and the children of her
husband from a deceased wife. Hence a father and a son could not marry
a mother and a daughter. Affinity begot affinity. But the Fourth
Council of Lateran took away all but the first kind of affinity; hence
the axiom that "affinity does not beget affinity". There was some
really groundless discussion in the eighteenth century as to whether a
step-father could marry the widow of his deceased stepson; but it was
authoritatively decided, as Benedict XIV states (De Syn. Dioec., IX,
xii) that there was no impediment to their marriage, it having been
done away with by the Fourth Council of Lateran.

The impediment to marriage from affinity arises from ecclesiastical
law. This is clearly recognized today by theologians with regard to
collateral affinity. The Church grants dispensation in all the degrees
of this affinity. In regard to affinity in the direct line, there was a
serious discussion whether in the first degree it arose from a natural,
Divine, or ecclesiastical law; by what law was a stepfather forbidden
to marry his stepdaughter? The Church refrains from granting the
dispensation, but does not disclaim the right to do so. Indeed, a
decree of the Holy Office (20 February, 1888) implies that this
affinity arises from ecclesiastical law: "The Holy Father permits
bishops to dispense from all public impediments diriment of marriage
derived from the ecclesiastical law, except from the order of the
priesthood, and affinity, in the direct line, arising from lawful
intercourse." Craisson states (Man. Jur. Canon, Lib. II, De affin., n.
4285) that "Collator Andegavensis" quotes (394) Sanchez and Pontius as
asserting that "the Pope dispenses converted infidels married within
this first degree of affinity, if they had contracted marriage in
accord with the law of their country." This supposes that this affinity
in the first degree of the direct line is not an impediment of the
natural or Divine law. An additional argument may be drawn from the
dispensation which the Church grants in this case where there has been
occult unlawful intercourse. Any repugnance of nature would hold then,
as where the intercourse proceeded from marriage.

If a married person should have intercourse with the
marriage-partner's blood-relative of the second degree, in the direct
or collateral line, a penalty is placed upon the one so sinning of
forfeiting the right to ask for marital intercourse from the
marriage-partner, though the innocent party does not forfeit the right
to claim it. If the wrong had been done through fear, the common
teaching is that the penalty is not incurred, and this is also probably
so if done without knowledge of the penalty. If incurred, a
dispensation from the penalty may be obtained from the bishop. The
affinity would become more complicated, and add new bars to marriage,
if the person had intercourse with several persons of varying degrees
of affinity. By the Roman law, the affinity ceased at the death of the
one from whom it originated. Thus when a remarried father died, his
second wife was no longer akin to the children of his former wife. By
canon law a marriage not consummated does not beget affinity. By a
marriage null through a diriment impediment, the affinity probably does
not extend beyond the second degree. By the French code the affinity in
the direct line, and in the first degree of the collateral line, is a
bar to marriage, though the privilege was given to the king to dispense
in the second case. The British law forbids the marriage of a man with
his deceased wife's sister, and a marriage of this kind performed in
the colonies of the British Empire, where it may be allowed, is not
held as valid in Great Britain. In the session of the British
Parliament in 1906, a strong effort was made to enact a law to
recognize as valid, in Great Britain, such a marriage, if the colonial
law recognized its validity where contracted. In Virginia this marriage
is null, but it is generally recognized in the other States of the
Union. The Greek Church adheres to the law as laid down in Leviticus,
xviii, 8, 14, 16, 18; xx, 11, 12, 14, 19, 21. Yet the Greek patriarchs
and bishops grant dispensations from some of the affinities therein
mentioned. Nestorians allow affinity to beget affinity very
extensively. Armenians extend the affinity to the fourth degree. The
United Orientals approach the Catholic regulations.